This is a paper prepared for the Criminal Law Symposium held in Wellington on 8 November 2002. The session was entitled Youth Justice – Future Directions. James Johnston presented a summary of the paper and participated in a panel discussion.

The biennial New Zealand Law Society Criminal Law Symposium is a unique opportunity for senior lawyers to discuss and debate key current issues relating to criminal law. The participants included Judges, senior lawyers and younger practitioners who act as catalysts to open up areas for debate and promote discussion. Justice Robertson of the Court of Appeal chaired this year’s session.

INTRODUCTION

Recent media reports and some high profile criminal cases would suggest that our nation’s youth are essentially out of control. In the last few months we have seen a manslaughter conviction for apparently the youngest person in our history (aged 13). He was only 12 at the time of the offending. A policeman has been shot dead and his colleague injured by a 17 year-old youth. Furthermore a 14 year-old female has been convicted of murder and two female accomplices for manslaughter for their respective parts in killing a man by striking him repeatedly with a hammer and disposing of his body in a river.

The media would have the general public believe that youth offending and particularly young violent offending is out of control.

This paper is part of the discussion involving future directions and proposes to look at youth justice under three headings. Is it working? How is it coping with serious crime? Should it remain a separate jurisdiction?

BACKGROUND

For many lawyers who are not youth advocates the youth justice system and its vagaries seem somewhat foreign and a tad too wishy-washy. You notice immediately that the Court is smaller and you refer to the young person by their first name. Positions are entered by way of a denial or non-denial rather than the customary guilty or not guilty pleas and a fundamental cornerstone of the philosophy is restorative justice by way of the family group conference process. Judicial intervention is a normal part of the process as the Judge and young person exchange greetings and pleasantries before matters get underway.

I can see the collective shuddering from defence counsel and prosecutors alike, particularly when I disclose that a team approach, which is at times very cooperative, is encouraged by way of interagency participation. This involves clear lines of communication and dialogue between youth advocates; youth aid officers and social workers.

For those practitioners who prefer the adversarial system, which as a passing reflection seems to be disappearing fast in most jurisdictions, the Youth Court is probably not for you.

The present youth justice system stemmed from major problems in the 1980s where the Children’s Courts were literally packed to capacity. The Children’s Court was a great opportunity for young offenders to meet and congregate on a regular basis, compare notes, catch up on the latest methods of crime technique and essentially run riot. Māori youth offending was basically at chronic proportions.

Essentially the pre 1989 legislation position had become completely unacceptable and major surgery was required. This took the form of the Children Young Persons and Their Families Act 1989 (“the Act”).

Many of you will be familiar with the legislation and I do not propose to go through its eleven parts and four hundred and sixty nine sections. Essentially however New Zealand’s child protection and youth justice systems are governed by the Act. As far as youth justice is concerned, the radical break from the previous system was aimed to divert the majority of young people accused of crime away from the existing criminal justice system, so that they could be dealt with using alternative, community-based approaches. Families and victims were to play a key part in the process with the intention of encouraging accountability, reparation and behavioural change.

In short what was introduced into New Zealand was a restorative justice model relying heavily upon the concept of diversion. Accountability was the key. Rather than assume that the offender’s family was a part of the problem, the emphasis shifted to the family being identified as a critical part of the solution. A new separate Youth Court was set up for young people.

The Act was ground breaking. It set about to significantly alter the way in which young persons were dealt with in the New Zealand youth justice system. It was essentially created as an innovative alternative to the doom and gloom pervading the 1980s and earlier.

Significantly the legislation was developed using a bicultural approach, with Māori involvement in the planning and research stages. This inclusive approach was apparently to acknowledge that Māori made up a disproportionate number of young persons being taken into care or custody, but also that Māori concerns had in the years leading up to the Act developed into a potent political lobby pushing for change. Indeed the Act represented what was essentially the first serious attempt by a New Zealand Government to endeavour to take into account the cultural values and perspectives of Māori and Pacific Island peoples in trying to combat issues of juvenile care, protection and/or offending, and to provide a system that would be not only accessible, but also understood and endorsed by them.

The main participants in the New Zealand youth justice system are the: Young person (aged 14 to 16). Whānau or family. Victim. Police Youth Aid (division of Police). Social Worker. Youth Justice Coordinator. Youth Advocate. Iwi or cultural social service. Youth Court Judge. Forensic Service. Social Service/Program Providers.

Some of the key features of the Act, particularly in the early days were as follows: The importance of whānau and tikanga Māori (Māori custom) in the process. Ability for self-determination in dealing with and responsibility for Māori youth. A vehicle for lore and law to work together as opposed to competing as they have so often done in the past. Restorative justice principles. Involvement of victim. Focus on putting things right/accountability. Focus on ensuring that no further offending. Family group conferences. Diversionary focus (clean slate). Flexibility. Collaborative approach. Enlightened policing. Driven by youth justice coordinators. Different mindset for lawyers away from adversarial approach. Inter-agency meetings.

IS IT WORKING?

Despite anecdotal evidence and trends which suggest that it is not, it is my view that for a significant number of young persons the youth justice system can work well. It does however have problems which require attention, particularly in relation to Māori over representation.

In order to assess this question we need to look at what the Act intends to achieve.

Objects of the Act

As far as offending is concerned the Act’s objectives require that young offenders be held accountable for their actions but in a way that acknowledges their needs and contributes to their development.

The objects are set out in Section 4 of the Act: Objects – the object of this Act is to promote the wellbeing of children, young persons, and their families and family groups by – Ensuring that where children and young persons commit offences, – They are held accountable, and encouraged to accept responsibility for their behaviour; and They are dealt with in a way that acknowledges their needs and it will give them the opportunity to develop in responsible, beneficial, and socially acceptable ways.

General Principles

A key requirement is that the family (including whānau or extended family, kinship groups and tribes) should be involved in decisions about the young person and that the strengthening of child/family relationships be part of the overall process. The child and family support for the outcome is also necessary.

The General principles are spelt out at Section 5, and in particular paragraphs (a) and (b): Principles to be applied in exercise of powers conferred by this Act…

The principle that, wherever possible, a child’s or young person’s family, whānau, hapu, iwi, and family group should participate in the making of decisions affecting that child or young person; and accordingly that, wherever possible, regard should be had to the views of that family, whānau, hapu, iwi and family group:

The principle that, wherever possible, the relationship between a child or young person and his or her family, whānau, hapu, iwi and family group should be maintained and strengthened: … The principle that decisions affecting a child or young person should, wherever practicable, be made and implemented within a time-frame appropriate to the child’s or young person’s sense of time.

Youth Justice Principles

The Youth Justice sections of the Act translated the objectives into the principles to be adopted in dealing with young offenders, in order to promote the welfare of the child, if possible within a community setting. These are set out at Section 208 and include:

208 Principles – Subject to Section 5 of this Act, any Court which, or person who, exercises any powers conferred by or under this Part of Part V or Sections 351 to 360 of this Act shall be guided by the following principles:

The principle that, unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter:

The principle that criminal proceedings should not be instituted against a child or young person solely in order to provide any assistance or services needed to advance the welfare of the child, or young person, or his or her family, whānau, or family group: The principle that any measures for dealing with offending by children or young persons should be designed -To strengthen the family, whānau, hapu, iwi, and family group of the child or young person concerned; and

To foster the ability of families, whānau, hapu, iwi and family groups to develop their own means of dealing with offending by their children and young persons: The principle that a child or young person who commits an offence should be kept in the community so far as that is practicable and consonant with the need to ensure the safety of the public: The principle that a child’s or young person’s age is a mitigating factor in determining -Whether or not to impose sanctions in respect of offending by a child or young person; and

The nature of any such sanctions: The principle that any sanctions imposed on a child or young person who commits an offence should -Take the form most likely to maintain and promote the development of the child or young person within his or her family, whānau, hapu, and family group; and Take the least restrictive form that is appropriate in the circumstances:

The principle that any measures for dealing with offending by children or young persons should have due regard to the interests of any victims of that offending: The principle that the vulnerability of children and young persons entitles a child or young person to special protection during any investigation relating to the commission or possible commission of an offence by that child or young person.This recognition of the needs, values and beliefs in particular cultural and ethnic groups has, and continues to be, innovative (when applied) as well as the provision by persons and organisations sensitive to the cultural perspectives and aspirations of different racial groups in the community. The empowerment of whānau, hapu and iwi participation in decision making and the commitment to maintain and strengthen where possible the young person’s relationships therein have been codified.

The Act therefore represents a major transfer of power to family and community groups and away from the state. It attempts to find family solutions to family problems within the context of the extended kinship groups and tribes. It is worth bearing in mind however that in order to work and be effective, the principles must be reflected in proper resources for its implementation.

The recent youth offending strategy prepared by the Ministry of Justice this year released the following statistics and trends, whilst at the same time lamenting the lack of robust information about the true extent of offending by children and young people in New Zealand.

Summary Of Trends

Police apprehensions of under 17 year olds as a proportion of all offender apprehensions have remained relatively stable since 1991, between 21% and 23%.

The number and rate of apprehensions of under 17 year olds has increased since 1991, as have the number and rate of apprehensions of those over 17. Dishonesty offences, e.g. burglary, theft and motor vehicle conversion, are by far the most common offence for which children and young people are apprehended. In 2000 51% of all apprehensions involving 14 to 16 year olds were for dishonesty offences. The number of youth justice family group conferences held each year has remained relatively stable since at least 1995 (approximately 6,200 to 6,800 per year). But there has been an increase in the number of Court-directed family group conferences since 1998. There has been an increase in prosecutions of young people since 1991 (from 2,735 in 1991 to 4,024 in 2000). Young people are most commonly prosecuted for property or violent offending. The majority of children and young people in the youth justice system are male (e.g. 77% – 80% of apprehensions of under 17 year olds and 85% – 89% of proved Court cases since 1991). Māori youth are significantly over-represented in youth offending statistics, comprising around half of youth in the youth justice system. Pacific youth are not over represented in youth offending statistics except for violent offences.The youth offending strategy also elaborates further in relation to the issue of offending by Māori youth. The youth offending strategy has found that Māori youth comprise around half of all youth not only apprehended by the police but also having a youth justice family group conference or being prosecuted in Court. The youth offending strategy also refers to anecdotal reports gathered on the Ministerial Taskforce’s operational visits suggesting that in some regions, the rate of Māori youth offending is significantly higher, comprising 80% – 90% of total youth offending (Rotorua, Gisborne and Hamilton). The reports, according to the youth offending strategy, are confirmed by Youth Court statistics which show that young Māori can comprise up to 90% of young people before the Court (Kaikohe (92%), Gisborne (89%) and Rotorua (86%) ). When one considers that the proportion of under 17 year olds in the general population who were Māori in 1996 was only 24%, Māori children and young people are therefore significantly over represented in youth offending statistics.

So why is this occurring? Particularly with a youth justice system that apparently has been developed using a “bicultural approach with Māori involvement in the planning and research stages.” Is it bad law for Māori? Or is it not being effectively implemented? Are Māori youth inherently offenders? Are there social economic factors?

If we put to one side the disproportionate number of Māori youth appearing in the youth justice system, the statistics tend to suggest that the overall picture of offender apprehensions and family group conferences have been relatively stable although prosecutions of young people which have lead to Court directed family group conferences have increased and more so since 1998.

What we also have to consider is that the majority of youth apprehensions are resolved by a warning or referral to Police Youth Aid by way of alternative action. Only a relatively small percentage of cases are resolved through a family group conference or prosecution in the Youth Court. In 2000 approximately 15% of apprehensions resulted in a family group conference and approximately 9% in prosecutions .

Thus for 85% of those youths apprehended by the Police in 2000 matters were resolved somewhat expeditiously and without the need for a family group conference. For 91%, matters were resolved without the need for Court intervention. Our focus therefore is principally upon the 9% who do make it to Court.

The youth offending strategy identifies a number of “current issues facing the youth justice system”. It has categorised by way of priority the following issues, which are supposedly addressed through the strategy itself : A shortfall in the resourcing and number of interventions.

Problems with the funding and quality of interventions. Improvements required in agency practices and priorities. Over representation of young Māori across the youth justice system. Over representation of young pacific people in violent statistics. Better data collection and data sharing across agencies required. A lack of strategic overview for the youth justice system. Significant gaps in research.Furthermore anecdotal information from youth advocates around the country raises certain other problems with the current system as follows: Insufficient youth justice residency beds for remands in Child Youth and Family Service custody.

Jurisdiction inadequate in terms of maximum penalty. Insufficient quality programs to assist young people, particularly iwi or tribal based. Insufficient resourcing for family group conference outcomes and/or monitoring of those outcomes. Role of nominated witnesses and admissibility of statements. Reliance on goodwill of officials/ burnout. Over reliance on whānau/families who in some instances are the very root of the problem. Hardcore/recidivist youth who are facing second or third family group conferences. Geographical variations in practice and outcomes. Independence of youth justice coordinators. Insufficient numbers of Māori youth advocates (7% of Advocates as at 1999).These issues require attention in order for the youth justice system to succeed. For instance the statistics in relation to Māori youth disclose a situation requiring particular attention. Every effort should be made to ascertain why this is occurring and then to implement an appropriate course of action to rectify the situation immediately.

On the whole however and for a significant number of our youth it can work and work well.

HOW IS IT COPING WITH SERIOUS CRIME?

Yes the youth justice system seems to be coping with serious crime, but for how much longer?

Cases involving serious crime (for example aggravated robbery, unlawful sexual connection, serious assaults, multiple burglaries, etc) are still routinely dealt with in the Youth Court jurisdiction by way of the range of options including diversion. However the limited maximum tariff makes it increasingly difficult to keep serious crime within the Youth Court. Unless there is legislative change to the maximum tariff this ability to deal with serious crime will be severely hampered. Also comprehensive and intensive programmes for serious young offenders are urgently required.

The Youth Court can transfer very serious cases to the District Court for prosecution or sentencing, or in rare cases the High Court. Murder and manslaughter are automatically transferred to the High Court from the Youth Court.

The youth offending strategy indicates , “There is concern about cases of very serious offending by young people.” Part of the key recommendations in the strategy include : “The development of new comprehensive and intensive interventions for serious young offenders”.

The statistics make it clear that there is a small group (estimated to comprise fewer than 5% of under 17 year olds) who commit a significant amount of youth crime .

In 1991 for every 10,000 10 to 16 year olds, 121 committed a violent crime. In 1995 that figure had increased significantly to 235 per 10,000. In 2001 that figure remained relatively stable at 250.

The short point is that notwithstanding the recent and high profile matters in the media, youth violent offending is not out of control. Furthermore it is not skyrocketing. What is apparent however is that violent offending is starting at a younger age and the offending is more serious when it does occur.

Recently Principal Youth Court Judge Andrew Beecroft stated in an interview that there were six common themes involved with violent young offenders : 85% were male.

Māori are over represented. Most were not at school. Many were from deeply disadvantaged family backgrounds. Many had a lack of male role models or had lost contact with their fathers. Many had psychological problems and/or substance addiction.There are insufficient and/or inadequate programs for serious young Māori offenders appearing before the Youth Court, young Pacific offenders who commit violent offences and programs targeting young female offenders.

It is pleasing to note that the youth offending strategy recommends a comprehensive and intensive intervention programme for serious young offenders. This will hopefully address some of the themes identified by Judge Beecroft. The proposed national pilot program spearheaded by Judge Carolyn Henwood and now with the assistance of the Ministry of Justice is designed to provide an intensive 18-month intervention for recidivist youth offenders with the aims of: Reducing serious and persistent re-offending.

Holding young people accountable for their offending. Providing a realistic and effective alternative to imprisonment for young people. Helping each young person be a positive member of society. Breaking the intergenerational cycle of offending including providing a job at the end of the program.Such a program, if successful, will hopefully prevent young offenders from graduating into the adult justice system.

As mentioned a major deficiency in the youth justice system in dealing with serious crime is the upper end tariff. The maximum tariff in the Youth Court is a sentence of supervision with residence (3 months reducible to 2 months for good behaviour) followed by 6 months of supervision. This tariff is simply inadequate for a number of the serious offences committed by young persons. Accordingly such matters are being transferred to the District Court for sentence. As a result a number of the more serious matters are not necessarily being determined within the Youth Justice context apart from an initial family group conference to discuss jurisdiction issues.

Indeed many of the most serious offenders in the Youth Court who graduate to the District or High Courts will in all likelihood have commenced their offending career at a young age. Only a few will have committed a first offence, which is so serious in nature that it would warrant prosecution in the Youth Court. The key may well be to deal effectively with those who have their first appearances in such a way that they do not repeat the exercise. Effective early intervention programs at the Youth Court level could potentially divert serious young offenders from prisons and residences and prevent re-offending as adults.

SHOULD IT REMAIN A SEPERATE JURISDICTION?

Yes and for some fairly obvious reasons.

The present youth justice system does have its strengths. They include: It does allow indigenous involvement and meaningful participation.

It allows Māori youth to have their cases determined with the assistance of their own whānau, hapu and/or iwi, who can take responsibility for their own youth. It enables Māori dispute resolution processes such as allowing the venue to be at a marae. Also Māori can determine the kawa or protocol (including at Court), how the Conference is run and putting plans in place. It is expeditious – a Family Group Conference can be held within two weeks and the whole process dealt with in a maximum of three appearances in Court provided things go well. Flexibility – the process allows innovation and thinking outside the square. Almost a blank page as far as diversion is concerned. The focus on “putting things right” and then moving on. The healing process – the opportunity to face up to one=s victims and a greater understanding of each other, particularly when an offender gets to see the effects of their offending and importantly the victim is able to see who the offender actually is. A special and dedicated team of experts in the area – i.e. Youth Justice Coordinator, Youth Aid officers, Youth Advocates, Youth Justice Social Workers etc. Consistency – the ideal is for the same Youth Advocate, Youth Justice Social Worker, Youth Aid Officer and Judge to deal with the particular case and the particular young person. Range of sentencing options – from diversion through to supervision with residence (carrying a maximum of 3 months residential followed by 6 months supervision). Allow young persons to make a mistake without being tarnished by a conviction. (Diversion). It can work and, when allowed to, does work very well.There are also a number of other practical considerations. Whether we like it or not 14 to 16 year olds are different from adults. In the majority of cases they are essentially still children notwithstanding some particularly serious offending. Also just imagine a District Court list day in your local Court being swelled by impressionable 14 to 16 year olds rubbing shoulders and sharing cells with their adult counterparts. Not a pretty picture is it?

The New Zealand youth justice system is unique and the Act in a number of respects has been a success, but that success has in my view been short lived and stunted. The statute itself is an exceptional piece of legislation allowing the types of flexibility and innovation, which I have previously referred to. In essence the framework or bones are there. However due to a number of weaknesses and shortcomings, some of which have been referred to, the situation is in real danger of descending back to the pre-1989 level. Indeed without appropriate and urgent intervention the situation could prove terminal as far as the New Zealand Youth Justice experiment is concerned.

In any event and for the moment the youth offending strategy indicates this Government’s commitment to a separate youth criminal justice system. Indeed Ministers Goff and Maharey have publicly stated: “The Strategy builds on the strengths of the existing youth justice system and addresses its shortcomings. It retains the foundations established by the 1989 Children, Young Persons, and Their Families Act, including the use of Police diversion whenever appropriate, Family Group Conferences (FGCs), and the separation of youth offenders from the adult criminal justice system as much as possible. It is these foundations that make New Zealand a world leader in youth justice.” (emphasis added)

For the time being therefore the separate jurisdiction will remain.

THE FUTURE

The youth offending strategy has signalled a commitment by the Government to address a number of the major issues facing our youth justice system. The proof of the pudding remains to be in the eating. Over the next decade the number of youth aged 10 to 16 will increase, which will in all likelihood bring with it an associated increase in the total amount of youth offending. The situation will be more pronounced, particularly among Māori and in areas such as urban Auckland. Indeed social welfare projections indicate that Māori will constitute 27% of New Zealanders under 17 by 2016 (up 3% from 1996) . Unless urgent action is taken now, in all likelihood we will see a proportionate increase in Māori youth offending which is even worse than the disproportionate over representation that we see today.

The 3% projected increase in Pacific children and young people to 13% in 2016 may also lead to a corresponding greater representation in youth offending, particularly violent offending.

Essentially the future path lies in appropriate and sufficient resourcing that is specifically targeted to enable the legislation to work, as it should. Essentially the youth justice system is at a crossroads. If some of the more fundamental issues identified are not addressed, and soon, then it is doomed to fail, particularly as far as Māori male youth and cases involving serious crime are concerned. On the other hand there is no reason why it cannot be a resounding success and become a “world leader in youth justice.”